United Merchants & Mfrs.

National Labor Relations Board - Board Decisions

Sep 24, 1985

276 N.L.R.B. 345 (N.L.R.B. 1985)

UNITED MERCHANTS & MFRS. 345
Uniglass Industries , Div. United Merchants & Mfrs.
and Amalgamated Clothing and Textile Work-
ers Union, AFL-CIO,. CLC. Case 11-CA-.
11089
24 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 3 August 1984 Administrative Law Judge
Hutton S. Brandon issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel. -
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER -
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Uniglass In-
dustries, Div. United Merchants & Mfrs., States-
ville, North Carolina, its officers , agents, succes-
sors, and assigns, shall take the action set forth.in
the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Janet M. Holland, Esq., for the General Counsel.
David C. Hagaman, Esq. (Clark, Paul, Hoover & Mallard),
of Atlanta, Georgia, for the Respondent.
Robert E. Freeman, of Kannapolis, North Carolina, for
the Charging Party.
- DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON , Administrative Law Judge.
This case was tried at Statesville , North Carolina, April
24-26, 1984. The charge was filed • on October 19, 1983,1
by Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC (the Union) and amended on December
2. The complaint and an amended 'complaint in the case
issued on December 2 and 13, respectively. The com-
plaint, as amended, alleges that Uniglass Industries, Div.
United Merchants & Mfrs. (Respondent or the Company)
All dates are in 1983 unless otherwise specified.
violated Section 8(a)(1), (3), and (4) of the National
Labor Relations Act (the Act).' The primary issues are
whether Respondent (a) violated Section 8(a)(3) and (1)
of the Act in discharging its employee Jeffrey Smith be-
cause of his involvement in union or concerted activities;
(b) violated Section 8(a)(4), (3), and (1) of the Act by re-
fusing to rehire Elaine Honeycutt, Charles Pegram, and
Jeanette Pegram because of their union activities and/or
because they -gave testimony under the Act in a prior
proceeding before the Board involving Respondent; and
.(c) independently violated Section 8(a)(1) of the Act
through statements of two supervisors to employees to
the effect that the alleged discriminatees were discharged
or were not rehired because of their involvement in
union activities or activities otherwise protected under
the Act.
On the entire record, including my observation of the
demeanor of the witnesses and after consideration of the
oral argument at the hearing by the Union and the post-
hearing briefs filed by the General Counsel and Re-
spondent, I make the following ,
FINDINGS OF FACT
1. JURISDICTION
Respondent is a corporation operating a plant in
Statesville , North Carolina, where it is engaged in the
manufacture of synthetic fibers. During the 12-month
period preceding issuance of complaint, Respondent, at
its Statesville plant, received goods and raw materials
valued in excess of $50,000- directly from outside the
State of North Carolina. During the same period, Re-
spondent manufactured, sold, and shipped goods valued
in'excess of $50,000 from its Statesville plant directly to
points outside the State of North Carolina. On these ad-
mitted facts, the complaint alleges, Respondent admits,
and I find that Respondent -is an employer engaged in
commerce Within the meaning of Section 2(6) and (7) of
the Act. The complaint also alleges, Respondent admits,
and I further find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The union activity alleged to provide the impetus for
Respondent's action in the refusals to rehire and the dis-
charge in this case began among Respondent's employees
sometime in early 1980. All of the alleged discriminatees
herein testified to various activities in behalf of the
Union, and Respondent, through Carl Sharpe, its assist-
ant director of industrial relations, -admitted to knowl-
edge of the union inclinations and sympathies of Honey-
cutt and Charles Pegram. Moreover, both Honeycutt and
Charles Pegram had given testimony against Respondent
in a prior unfair labor practice hearing before the Board
in early 1981. That case was settled by the parties during
the hearing and prior- to any decision on, the issues in-
volved.
Respondent's knowledge of . Jeanette Pegram's union
inclinations could be inferred from the fact that she was
276 NLRB No. 35
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
married to Charles Pegram and likely shared his views
on the Union However such an inference is unnecessary
because Rayford Clanton Jeanette s brother and a de
partment manager and supervisor for Respondent admit
ted to remarks related in more detail below revealing
Respondents knowledge that Jeanette in fact shared in
her husbands union support
Jeffrey Smith testified that he was active in the union
campaign to the extent of passing out union leaflets at
tending meetings and wearing a union T shirt in the
plant Respondent does not admit to any knowledge of
Smith s union activity which in any event would have
antedated his most recent period of employment by Re
spondent beginning on March 14 However as detailed
infra the General Counsel primarily relied on Smith s in
volvement with known union adherent Honeycutt to
supply the basis for Respondents knowledge of his likely
union support and the predicate for retaliatory action
against him
The record indicates that the Union s campaign culmi
nated in an election on July 24 1980 and the Union lost
The record does not establish that the old union cam
paign was continuing during the period when Respond
ent took the alleged discriminatory action herein or that
a new campaign had started at any relevant time
B The Refusals to Rehire
1 The material facts
a Honeycutt
Elaine Honeycutt s first period of employment by Re
spondent began in about 1973 On three separate occa
sions she quit Her forth and last period of employment
began in September 1978 At the time of her layoff in
July 1982 she was a weaver Neither the layoff nor Hon
eycutt s selection for layoff was discriminatory
Under Respondents policies in effect at the time of
Honeycutt s la) off laid off employees retained recall
rights for a period of 6 months 2 Under this policy Hon
eycutt s recall rights expired in January and it then
became necessary for her to reapply for employment
with Respondent She did so in January Moreover as
required under Respondents policies Honeycutt updat
ed her application monthly by advising Respondent s
offices of her continued interest in employment Honey
cutt testified herein that upon visits or calls to Respond
ent to update her application she was told by Judy Lam
berth then Respondent s assistant personnel manager to
rest assured that when a job became available for which
she was qualified she would be called
Honeycutt was not recalled to work however in spite
of the undisputed fact that beginning in February Re
spondent began to hire new employees including six in
Honeycutt s weaver classification Additional weavers
were hired in March Further seven new employees
were hired in February in the loom fixer classification a
2 Respondent changed this policy in July 1983 to extend recall rights
for a full year
position in which Honeycutt had received 13 weeks of
training in 1980 3
Honeycutt testified that after becoming aware that Re
spondent had employed a large number of employees she
arranged a meeting with Sharpe in June At the meeting
she asked Sharpe why she had not been recalled Sharpe
replied that it was because Respondent had decided to
enforce a previously existing policy against hiring appli
cants with relatives in Respondent s management or su
pervision 4 It is undisputed that Honeycutt s father
George Honeycutt was at all material times employed
by Respondent in a position qualifying him as supervisor
within the meaning of the Act Honeycutt asked Sharpe
why Randy Gardner a son of a weave room supervisor
had been hired in February and Sharpe indicated that
the return to the old policy did not take effect until
March 1 8
The General Counsel contends that Respondents fail
ure to rehire Honeycutt during February when it rehired
other employee. and Respondents subsequent decision
to enforce its anti nepotism policy were discriminatory
actions designed to avoid reemployment of Honeycutt
This contention is supported by further uncontradicted
testimony of Honeycutt concerning conversations with
her father about the union campaign and Honeycutt s of
forts to be reemployed
The remarks attributed to George Honeycutt by his
daughter mark the development of a deep familiar rift
caused by Elaine Honeycutt s union support Thus she
testified that prior to her testimony in the earlier Board
proceeding her father asked her not to testify told her
that he would rather she stay out of the matter and told
her if she testified she would lose her job and would
have to leave the State to find another one The day fol
lowing her testimony he told her that she had disgraced
him that Respondent was going to close its doors that
neither he Elaine nor her sister Wanda also an employ
ee of Respondent who worked against the Union would
have a job According to Honeycutt her father repeated
these remarks and made similar remarks on several subse
quent occasions More specifically about 3 weeks fol
lowing her layoff he told her after what she had done
and the shame she had put on him Respondent would
never recall her to work He further told her that if she
had not run her mouth and had not testified that she
would still have been working at Respondent that her
actions had put a black mark on his name that she was
not worth much and probably would not get another
job in town
3 Honeycutt conceded that it takes approximately 26 weeks of training
to become proficient in loom fixing She was bumped back from the pose
tion prior to completion of her training due to an economic layoff
* The policy appearing in the employee handbook generally distnbut
ed to employees is as follows
To avoid misunderstandings no member of management shall
employ and/or supervise any member of his or her immediate
family The immediate family is defined as a parent brother or
sister spouse child grandparent or corresponding in laws (This
policy does not affect any situations existing when this policy was
established )
5 When it was decided that the old policy would be enforced relatives
of management who were already employed were grandfathered in
and not discharged
UNITED MERCHANTS -& MFRS. 347
The last remark on this subject attributed by Honey-
cutt to her father was made in a telephone conversation
between the two a month or two prior to the hearing
herein . Upon her question as to whether. she would be
-recalled by Respondent, George Honeycutt ambiguously
replied that he did not think she would be called back,
not because of the Company but because of the Union.
Further evidence of Respondent's animosity toward
Honeycutt due to her union activity was revealed in the
testimony, of employee Arlene Smith. She testified about
a conversation she had with Raymond White, Respond-
ent's weave division manager, around June 28, regarding
the discharge of Jeffrey Smith, another alleged, discri-
minatee and Arlene's son. According to Arlene Smith,
White reported to her at her work station concerning his
postdischarge efforts in behalf of Jeffrey Smith undertak-
en at Jeffrey Smith's request. White told her there was
nothing he could do about the discharge, but if he had
known about it before it happened, he could have
stopped it. However, he added that "they were saying"
that Jeffrey made an implied threat to Respondent when
he brought Honeycutt with him when he came to see his
supervisors just prior to the discharge. Arlene Smith- re-
plied that the only purpose for Honeycutt's presence was
verification of Jeffrey Smith' s illness, which occasioned
the absences which in turn precipitated Smith's discharge
interview. Arlene Smith, Jeffrey's mother, added that her
son had ' initially asked her to come and verify his illness
to his supervisors rather than Honeycutt but she had de-
clined, and Honeycutt who lived with the Smiths volun-
teered. White replied that had Arlene Smith or Jeffrey
come alone he would still be employed. White added
that if one had an argument one would not go out and
get one's worst enemy to arbitrate. Arlene Smith asked
White if Honeycutt was his worst enemy and White an-
swered, "The way she dragged our ass through-court[?]"
and the conversation ended.
Arlene Smith testified regarding two additional con-
versations she had with White - concerning Honeycutt.
The first was in January when she asked White if Hon-
eycutt would be hired back. On that occasion, White
said he thought a lot of .Arlene Smith,s and of Honey-
cutt's father, and he would do his best but he had a lot
of opposition from "across the street," a reference to the
personnel office. Subsequently, in March, White reported
to her that he and Wendell Cook, superintendent • of
weaving, had "tried" hard to get Honeycutt back but
just were not going to be able to do it.
Respondent's explanation for not recalling Honeycutt
in early February, as related through Sharpe, was that
Respondent hired other former employees in preference
to Honeycutt since they had better work records. Specif-
ically, in this regard, Sharpe testified that during her em-
ployment, Honeycutt had received 12 "talk. sheets" and 4
written reprimands while the others rehired did not have
disciplinary records-'as bad as Honeycutt..Sharpe's expla-
nation for the subsequent failure to recall Honeycutt was
'based on Respondent's decision to reinforce its antinepo-
6 It appears to have been common knowledge that , Honeycutt live in
Arlene Smith 's home Further , Honeycutt identified Arlene Smith as
being the grandmother of Honeycutt 's daughter '
tism policy. In this regard, Sharpe testified that his atten-
tion was called to the antinepotism policy, or more spe-
cifically, the failure to enforce it, when Supervisor Doug
Gentle requested -him in February to' hire Gentle's son.
Sharpe, then the personnel manager, resisted but learned
that Randy Gardner, son of a department manager in
weaving, had just been hired. He concluded that it was
time to correct the problem by enforcing the existent
policy. Accordingly, after conferring with Bob Rogers,
Respondent 's general manager , the decision was made to
enforce the antinepotism policy, and the decision was
communicated to.Bob Foster, employee relations direc-
tor, and Lamberth. Sharpe confirmed the determination
to enforce the policy with a, memo to Rogers dated
March - 1. He testified that • since reinstitution of the
policy, Respondent- has made no exceptions in its appli-
cation and-pointed out that in addition to Honeycutt, Re-
spondent has, since March 1, declined to hire six rela-
tives of management officials including the son of Doug
Gentle..
Sharpe admitted talking to Honeycutt about the deci-
sion not to rehire her because of reinstitution of the an-
._tinepotism policy. However, he placed their conversation
in late March' or early April' rather than June as Honey-
cutt had testified. -
White, called as a- witness by- Respondent, acknowl-
edged that he talked to Arlene Smith about Jeffrey
Smith's discharge. He generally denied the remarks at-
tributed to him by her on that occasion and conceded
only that he told her that if she had come to see him
before the events had taken place he possibly could have
helped Jeffrey.
b. Charles and Jeanette Pegrart
Charles Pegram was employed by Respondent for ap-
proximately 20 years. He worked as a-loom cleaner prior
to his layoff about March 15, 1982. His wife, Jeanette
Pegram, was also a long-time employee of Respondent
having started work there in 1964. Like Charles, Jea-
nette, a banker in the preparation department, had prior
layoffs, one lasting from September 1976 to November
1979. Her last period of employment ended with- her
layoff on January 25, 1982.
Under Respondent's policy, already noted, the Pe-
grams lost seniority and recall rights 6 months following
their layoffs. However,,they put in new applications and
monthly thereafter updated their applications by visits to
the plant personnel office. They were never rehired al-
though Respondent, beginning in late January and con-
tinuing over the next several months, rehired a number
of loom cleaners and bankers. Moreover, it is undisputed
that the Pegrams. were never told by Respondent they
were not going to be rehired or the reason they were not
until October '12, -when Sharpe observed them during
their visit to the plant to "update" their applications and
called them into his office. There he explained to them,
in effect, that they were' wasting their time, that they
would not be rehired because Respondent had, on March
1, reinstituted its policy against hiring close relatives of
supervisors or management. It is undisputed that Jeanette
Pegram 's brothers Rayford and Buford Clanton were
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Respondent as supervisors at all material
times.
Respondent, through Sharpe, conceded at the hearing
that the Pegrams had good work records and contended
that the refusal to recall them was based solely on the
decision to enforce the antinepotism policy. Sharpe in his
further testimony explained the failure to rehire the Pe-
grams during the period between the beginning of Re-
spondent's rehiring of employees in the Pegrams' work
classifications and the date of the reinstitution of the an-
tinepotism policy. Thus, with respect to the one banker,
-Elizabeth Steelman. rehired during that period, Sharpe
testified that Steelman was selected over Jeanette
Pegram because of her need for work and her advanced
age. Further,' according to Sharpe, while the work
records, of the two were about equal, Jeanette Pegram
presented a slightly greater safety risk in view of a back
injury which had caused her to lose worktime during her
previous employment.
With respect to Charles Pegram, Sharpe testified that
one vacancy in the loom cleaner classification was filled
on the third -shift around February 20, and another on
the second shift sometime later but after the decision had
been made to reinstitute the antinepotism policy. Charles
Pegram was not considered for the first vacancy because
he had asked for employment on the second shift (a fact
he admits), and he was ineligible for the second-shift po-
sition-when.it was filled due to the antinepotism policy
and -his, relationship. to Supervisors Rayford and Buford
Clanton.
To support her contention that the refusal to rehire the
Pegrams was based on unlawful union consideration, the
General Counsel relies on the testimony of Jeanette
Pegram and Ralph Clanton, another of Jeanette's broth-
ers. Ralph Clanton testified about two telephone conver-
sations he had with Rayford Clanton on September 18,
during a visit to the Pegram home.? He called to inquire
when that "hole" was going to rehire the Pegrams. Ray-
ford Clanton took offense at the reference to Respondent
which he perceived to be uncomplimentary, and the con-
versations between the two brothers went downhill from
that point. More specifically, Ralph Clanton testified that
Rayford explained that the Pegrams had no recall rights
and rejected a suggestion that he could do anything
about getting them rehired saying that. it- was up to the
personnel department. Rayford also added that had the
' Pegrams "not shown their asses by trying' to organize
that stupid union, they might still have been" employed
by Respondent. The brothers concluded their conversa-
tions, but not before exchanging uncomplimentary re-
marks and discussing a meeting for the purpose of fight-
ing.
Jeanette Pegram attributed a similar remark to Ray-
foid - Clanton about October 12 after being told by
Sharpe she and Charles would not be rehired. She tele-
phoned Rayford and asked him what he had meant in
the remark to Ralph Clanton about having showed "our
ass." Rayford replied that it was on account of their
7 Ralph Clanton initially testified to only one telephone conversation
with Rayford , but on cross-examination explained that Rayford hung up
on him at one point but called him back -within a minute or two
taking part in "the damn Union" and added that if they
had not showed their "asses" they would have been back
to-work "by now."
Rayford Clanton in testifying for Respondent admitted
that he had told Ralph that the Pegrams had showed
their "asses" by being involved with the Union. Howev-
er, he- related that it was Ralph who asked if Rayford
was saying-that the Pegrams would still have been em-
ployed if it had not been for their-union involvement. To
this, Rayford responded that he had not said that. Ray-
ford Clanton did not in his testimony respond to the re-
marks attributed to him by Jeanette Pegram, and thus
did not contradict them.
While admitting to having an interest in seeing the Pe-
grams return to work, Ralph Clanton had the appearance
'of a dispassionate witness. He impressed me as being to-
tally unaffected, very straightforward, and guilelessly
honest. Moreover, I find it plausible and believable that
Rayford Clanton, having expressly admitted to his dissat-
' isfaction with the Pegrams' union involvement, would in
a heated discussion have attributed their lack of' employ-
ment • status to such involvement. Finally, Ralph's testi-
mony is more probably accurate in view of Jeanette Pe-
gram's uncontradicted testimony attributing an identical
remark to Rayford Clanton. I, therefore, credit Ralph
Clanton's testimony as well as that of Jeanette Pegram
over that of Rayford Clanton who I found less persua-
sive as a witness. -
2. Arguments and conclusions
Initially, the General Counsel argues that Rayford
Clanton's statement to Jeanette Pegram was coercive and
violative of Section 8(a)(1) because it conveyed to an
employee applicant that Respondent would not rehire
her because she had engaged in union activities. Further,
the General Counsel contends that White's statement to
Arlene Smith similarly violated Section 8(a)(1) of the
Act because it implicitly and ,coercively - threatened an
employee that employees were subject to discharge if
they sought assistance of other employees or individuals
who were, or had been, engaged in union activity. Re-
spondent's arguments in defense of the allegations are
predicated solely on the testimony of its witness Rayford
Clanton and Raymond White. •
The testimony of Rayford Clanton has already been
rejected. herein where it contradicts the testimony of
Ralph Clanton and Jeanette Pegram.'I likewise reject the
testimony of White where it differs from that of Arlene
Smith. Arlene Smith's recollection appeared reasonably
good and her delivery was convincing and, I am per-
suaded, truthful. Furthermore, her version was reasona-
ble for it is,undisputed that White had admittedly agreed
with Jeffrey Smith that he- would inquire into -Jeffrey's
discharge and report to Arlene.. Smith. Lastly, as the
General Counsel's brief points out, Arlene Smith, as a
.current employee of Respondent, was testifying at some
risk to her pecuniary interest so that her testimony was
more likely to be true. Gold Standard Enterprises, 234
NLRB 618, 619 (1978). I -have considered,- however, the
possibility of bias on the, part of Arlene Smith based on
her relationship with Jeffrey Smith. However, I-have dis-
UNITED MERCHANTS & MFRS.
counted such bias, since it appears that as a long-time
employee of Respondent she had more to lose than gain
by false testimony. White's testimony in contrast to
Arlene Smith was more equivocal and his recall less spe-
cific and certain. Accordingly, I credit Arlene Smith
where her testimony differs from that of White.
Considering the credited testimony of Ralph Clanton,
Jeanette Pegram, and Arlene Smith, I concur in the ar-
guments of the General Counsel that the remarks of
Rayford Clanton and White tended to be coercive and
conclude that Respondent violated Section 8(a)(1) of the
Act as alleged through such remarks.
With respect to the unlawful refusal to hire the Pe-
grams and Honeycutt, the General Counsel contends that
the reimplementation of the antinepotism policy was
simply a pretext hit upon as a device to avoid the rehire
of union adherents in violation of Section 8(a)(3) and (1).
Thus, Respondent had noi' enforced the rule for many
years, and even though during much of that time Sharpe
had served as the plant personnel manager he'had not
found the failure to enforce the rule to be a substantial
problem. Even when the rule was'reimplemented, cur-
rent employees were "grandfathered in" without causing
any apparent difficulty. The General Counsel further
argues that Respondent's witnesses cannot be believed
regarding the date the antinepotism rule was reimple-
mented and suggests that the date of reimplementation of
March 1 was fabricated because Sharpe's March 1 memo
refers to the application of Scott. Gentle as a motivating
factor for the action even though Gentle's application
was not submitted until March 1. Further in this regard,
the General Counsel points to the fact that neither the
Pegrams nor Honeycutt were advised of the reimplemen-
tation until months after the claimed reimplementation
date. Lastly, and specifically with respect to Charles
Pegram, the General Counsel asserts that a loom cleaner
was hired, on, February 28 before the rule was reimple-
mented. The rule could not, therefore, have been a
factor in the refusal to rehire Charles Pegram according
to the General Counsel. Yet, . clearly it was the only
factor relied on by Respondent in not rehiring him.
The General Counsel argues that White 's statement to
Arlene Smith clearly establishes the 8(a)(4) violation
with respect to the Pegrams and Honeycutt because it
reveals Respondent's animosity toward Honeycutt for
dragging Respondent through the court. Such animosity
may also be inferred for Charles Pegram who likewise
testified against Respondent • in a prior case. 8 _
Respondent' s initial defense to the refusals to rehire
Honeycutt and the Pegrams is a procedural one. In its
brief and in argument at the hearing, Respondent relied
on Machinists Local 1424'v. NLRB, 362 U.S. 411 (1960),
contending that any finding of a violation in the refusal's
8 The complaint alleged , and the General Counsel asserted, that the re-
fusal to rehire Jeanette Pegram was also violative of Sec 8 (a)(4) Howev-
er, the General Counsel appears to have abandoned this position in her
brief Accordingly , and since Jeanette Pegram did not previously testify
against Respondent or, insofar as the record shows, give any information
of affidavit to the Board in relation to the prior case and because no au-
thority or reasonable theory'has been advanced upon which an 8(a)(4)
violation by Respondent with respect to Jeanette Pegram can be predi-
cated , I shall recommend that this allegation of the complaint be dis-
missed.
349
to rehire Honeycutt and the Pegrams is barred by the 6-
month period of limitation set forth in Section 10(b) of
the Act. More specifically, Respondent argues that the
refusal to -hire Honeycutt and the Pegrams can be found
to be unfair labor practices only if the pre-Section 10(b)
decision to reimplement the antinepotism policy is found
to be discriminatorily motivated. Respondent asserts that
under Bryan, supra, "where a complaint based on that
earlier event [the decision to implement the antinepotism
policy] is time barred, to permit the event itself to be so
used [as evidence to cloak with illegality that which is
otherwise lawful] in effect results in reviving a legally
defunct unfair labor practice." In making this argument,
Respondent fails to distinguish the substantial body of
Board law, however, which holds that Section 10(b) is
subject to equity principles so that it may be tolled
where a'respondent has fradulently concealed unlawful
conduct and the person adversely affected by a respond-
ent's actions is not put on notice of such-action. See, e.g.,
Jackson Engineering Co., 265 NLRB 1688 (1982);
Drukker Communications, 258 NLRB 734 (1981); K & E
Bus Lines, 255 NLRB 1022 (1981); Crown Cork & Seal
Co., 255 NLRB 14 (1981); V M Construction Co.,' 241
NLRB 584 (1979); -Safety Electric Corp., 239 NLRB 40
(1978).
On the ' basis of the cited cases the further authority
cited in' Respondent's brief NLRB v. McCready & Sons,
482 F.2d 872 (6th Cir. `1973), and Bowen Products Corp.,
113 NLRB 731 (1955), is inapposite, for in Respondent's
case, the adversely affected parties had clear notice of
the alleged unlawful actions more than 6 months. before
the filing of the charge with the Board. -
In the instant case, the 6-month period of limitations
prior to filing the charge, I conclude, runs from the time
that Honeycutt and the Pegrams were put on notice,
actual or constructive, that they were not subject to
rehire. Since the limitations period provided under Sec-
tion 10(b) contitutes an affirmative defense, the burden of
establishing the facts on which the defense rests is on the
Respondent. St. Mary's Infant Home, 258 NLRB 1024
(1981 ). It is quite clear that the Pegrams were not told
until October that they were not subject to rehire and
the reason they were not, i.e., the reimplementation of
the antinepotism rule.-The reason expressed for the refus-
al to rehire is less important than the communication that
they would not be hired. The fact remains that prior to
October they were not in anyway discouraged from "up-
dating" their applications. Respondent points to no sub-
stantive evidence to establish actual or constructive
knowledge on the Pegrams' part outside the 10(b) period
that they would not be rehired. The fact that Respond-
ent may, not have actively concealed its reimplementa-
tion of the antinepotism policy does not constitute con-
veyance of a notice to the Pegrams of their ineligibility
for rehire. See ACF Industries, 234 NLRB 1063 (1978),
enfd. as modified 596 F.2d 1344 (8th Cir. 1979). .
On the basis of this record until October, the Pegrams
were entitled to believe that they were subject to being
rehired and even that their probability of rehire was
good, in light of their prior work record with Respond-
ent which Respondent admits was good. Accordingly, I
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclude that the 10(b) period did not begin to run with
respect to the Pegrams until they were advised by
Sharpe that they would not be rehired Since that infor
mation was given them on October 12 and the initial
charge herein was filed on October 19 the charge was
clearly timely under Section 10(b)
Whether Respondents 10(b) defense is valid with re
spect to Honeycutt s case depends on whether one be
lieves Honeycutt or Respondents witnesses Sharpe and
Judy Lamberth the assistant personnel manager at the
relevant time Honeycutt testified it was in June that
Sharpe told her she would not be rehired If in fact Hon
eycutt received such notice any time in June then the
charge with respect to Honeycutt was timely under Sec
tion 10(b) However Sharpe testified he told Honeycutt
that she would not be rehired and the reason in late
March or early April Lamberth s testimony was that
Sharpe told her in late March that he had advised Hon
eycutt that she would not be rehired A March revela
tion of this information to Honeycutt would make the
charge untimely in her case Honeycutt s testimony on
the time frame of her meeting with Sharpe on the subject
of her rehire was unequivocal if not precise with respect
to the exact date Notwithstanding the importance of her
testimony on this point Respondent chose not to exten
sively gLestion her on it during cross examination More
over her testimony generally was not substantially con
tradicted Sharpe s testimony was no more precise than
Honeycutt s on the date of their meeting His uncertainty
as to the date does not preclude the possibility that his
discussion with Honeycutt took place after April 21 the
earliest date the charge would be timely under Section
10(b) with respect to Honeycutt s case Lamberth also
admitted uncertainty in her testimony placing the meet
ing between Honeycutt and Sharpe in March Further
more Lamberth when pressed was unable to convmc
ingly explain exactly why she recalled March was the
month that Sharpe told her Honeycutt had been told she
would not be rehired Under these circumstances and be
cause Lamberth admitted that Honeycutt continued to
update her application after March and because there
is no evidence that Honeycutt did so after June I am
convinced that Honeycutt s testimony as to the date
should be credited Accordingly I conclude that Re
spondent has failed to affirmatively establish that Honey
cuff had notice that Respondent definitely would not
rehire her more than 6 months prior to the filing of the
charge
Turning to the merits of the complaint allegations re
garding Honeycutt and the Pegrams it must initially be
observed that the General Counsel under the dictates of
Wright Line 251 NLRB 1083 (1980) enfd 662 F 2d 899
(1st Cir 1981) must fast prove a prima facie case suffi
dent to support the inference that protected conduct was
a motivating factor in Respondents failure to rehire the
three employees Once the prima facie case is established
the burden then shifts to the employer to demonstrate
the same action would have taken place even in the ab
sence of protected conduct
The General Counsels prima facie case with respect
to Honeycutt and the Pegrams is established I conclude,
by the statements I have found to have been made by
Rayford Clanton and Raymond White The uncontra
dicted statements of George Honeycutt to Elaine Honey
cutt also support the General Counsels case Thus the
statements of Rayford Clanton White and George Hon
eycutt establish Respondents knowledge of the union ac
tivities and inclinations of the three alleged discnmina
tees Respondents hostility to the three because of such
activity and inclinations and Respondents determination
not to rehire the three specifically due to that hostility
The other record evidence supporting the General Coun
sel s case is found in the uncontradicted fact that the
three were not rehired for positions in which they were
qualified even though they had work records which
would not bar their rehire and Respondent had vacancies
in those positions Furthermore Sharpe in his testimony
conceded that Respondents decision to reimplement the
antinepotism policy was prompted to some extent by a
desire to avoid the family riffs between management off
cials and employee relatives occasioned by union orgam
zation issues
The General Counsels prima facie violation with re
spect to the 8(a)(4) and (1) allegations concerning
Charles Pegram and Honeycutt is made out by the re
sentment Respondent demonstrated in White s statement
regarding Honeycutt as having dragged Respondent
through court The resentment to Charles Pegram for
the same reason may reasonably be inferred since he also
testified against Respondent in the same NLRB proceed
mg Accordingly I conclude that the burden shifts to
Respondent under Wright Line to demonstrate that it
would not have rehired the three alleged discriminatees
even in the absence of their protected conduct under the
Act
There can be no doubt as Respondent argues that its
antinepotism policy had some very obvious and legiti
mate purposes Indeed the policy was initially formulat
ed and instituted many years prior to the advent of the
union organization issue in the plant However it had
been universally ignored for many years so that reimple
mentation had the effect of creating a new policy The
issue here is whether the return to the rule or policy was
prompted by Respondents desire to avoid rehiring of
union supporters
There are several factors pointed to by Respondent
which tend to support its case that the return to the old
policy would have been made without regard to the
rehire issue of the Pegrams and Honeycutt Thus there
is Sharpe s testimony not specifically contradicted that
the request of Supervisor Doug Gentle in February that
his son be hired by Respondent called Sharpe s attention
to the nepotism problem not the rehire applications of
the Pegrams and Honeycutt And contrary to the con
tention of the General Counsel Sharpe testified with
corroboration from Lamberth and personnel clerk
Brenda White that the decision to return to the old
policy was made in late February even though the memo
on the subject was not written until March 1 Moreover
there is little evidence to contradict Sharpe s further tes
timony that prior to the reimplementation of the antme
potism policy the positions for which the Pegrams and
Honeycutt were qualified were simply filled with rehires
UNITED MERCHANTS & MFRS.
who were better qualified. Accordingly, Respondent as-
serts that the General Counsel has failed to establish dis-
parate treatment. '
As further evidence of the lack of disparate treatment
of the three and in support of its argument that it has re-
butted the General Counsel's case, Respondent points out
that all the new hires placed into the positions for which
the Pegrams and Honeycutt were qualified were former
employees rather than completely new hires. To the
extent such rehires may not have been senior to the Pe-
grams and Honeycutt, Respondent asserts that. the Pe-
grams and Honeycutt like all the rehires who had been
off more than 6 months did not have seniority so that se-
niority was not a consideration.
Finally, Respondent argues that following reimplemen-
tation of the antinepotism policy, the rule has been rigid-
ly enforced and presented evidence that six other appli-
cants have been denied . employment under the policy
since March 1.9
After careful consideration of the arguments and the
record I am persuaded that the preponderance of the evi-
dence supports the complaint allegations and Respondent
has not successfully rebutted the General Counsel's case.
The record initially would suggest that neither Honey-
cutt nor the Pegrams so' distinguished themselves in
union activities as to make them likely targets for dis-
crimination. However, one must consider that at least
Charles Pegram and Honeycutt did distinguish them-
selves in giving testimony in the prior Board proceeding
before Respondent. Further, one must also consider that
they were distinguished in their union activity by virtue
of their relationship to Respondent's supervisors: It was
that relationship which served as a particular embarrass-
ment to Respondent as revealed by the comments'attrib-
uted to George Honeycutt by his daughter to the effect
that he felt himself disgraced by her union activity. A,
similar embarrassment to Rayford Clanton by the Pe-
grams' union activity may be inferred from Clanton's re-
marks that the Pegrams "showed their ass" in such activ-
ity. Thus, the record clearly established not only the
identification by Respondent of the Pegrams and- Honey-
cutt as union activists and supporters but also their dis-
tinction as probable objects of retaliation for such activ-
ism And both George Honeycutt and Rayford Clanton
directly related to the alleged discriminatees as already
set forth herein that it was their union activism which
would preclude or did preclude their reemployment.
To the extent that Respondent admits that its reimple-
mentation of the antinepotism policy was based on its
desire to avoid internal family disputes brought about by
union organization issues, Respondent admits a discrimi-
natory purpose with respect to rehire situations. It' is one
thing to return to the antinepotism policy and to apply it
prospectively to new hires in order to avoid family
squabbles over union issues . It is quite another thing to
reimplement the policy and apply it retroactively to
avoid the rehire of former employees because they un-
fortunately encountered internal family disputes involv-
ing members of Respondent' s management simply be-
9 None of these applicants, however, appear to be rehires as opposed
to new hires
351
cause they exercised their rights under the Act to engage
in union activity. In the latter case , the discrimination is
clear for it-is a direct response to past union activity. A
further intent to discriminate may be inferred from the
result accomplished and the absence of evidence here to
show that rehire applicants who were related to manage-
ment but who have supported Respondent against the
Union were similarly denied reemployment after the im-
plementation of the antinepotism policy.
That there was no great urgency or underlying con-
cern of great moment in the rush-to reapply the antine-
potism policy to rehires aside ' from retaliation for union
considerations is demonstrated by the fact that Respond-
ent "grandfathered" in its current employees. Every ar-
gument Respondent advances for its decision to reinforce
the antinepotism policy applies with equal force to its
current employees so as to logically dictate their termi-
nations . This includes an argument by Sharpe that a con-
sideration for reimplementation was the establishment of
a liberalized job-bidding procedure10 in the plant in July
which increased the possibility that employee relatives of
supervision would wind up being supervised by their rel-
atives, a situation which would also violate Respondent's
rules. I specifically reject Sharpe's testimony that this
was a consideration because the liberalized policy proce-
dure was' not initiated until 4 months after the decision to
reimplement the antinepotism rule. On the basis of this
record, this defense is pure afterthought.
I do not agree with the General Counsel's argument
that the record establishes that Respondent decided to
reinstitute the antinepotism rule sometime later than
March 1. That argument is based on pure speculation
and goes against the clear weight of the evidence includ-
ing the uncontradicted testimony'of Sharpe, Lamberth,
and White that-the decision was made in the latter part
of February. Nevertheless, based on the clear evidence
of Respondent's clear knowledge of the union activity
and inclinations of the' three discriminatees, the evidence
of specific union animus against them including com-
ments by management representatives already discussed
which connects the refusal to rehire with the discrimina-
tees '• involvement in prior union activity, Respondent's
concession; that an effort to avoid internal family squab-
bles between management and employee relatives due to
employee union activity was a consideration in the
return to the antinepotism rule, -and the disparate applica-
tion of the antinepotism rule to refuse to rehire union ad-
herents whose only disqualification for employment was
their' relationship to management officials while Re-
spondent retained in its employ employees who were rel-
atives of management, I conclude that Respondent has
failed to successfully rebut the General Counsel' s prima
facie case. In short, Respondent has not demonstrated
that Honeycutt and the Pegrams would not have been
rehired in the absence of their protected conduct. I,
therefore, fmd that Respondent violated Section 8(a)(3)
'° The change in the job bidding in effect allowed bidding on the basis
of plant seniority rather than department seniority as had previously been
the case At the same time, Respondent extended recall rights to laid-off
employees to 1 year rather than 6 months. This change was not applied
retroactively and therefore was not applicable to Elaine Honeycutt.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and (1) of the Act in refusing to rehire the Pegrams and
Honeycutt. -
I further find, as alleged and argued by the General
Counsel, that Respondent-violated Section 8(a)(4) and (1)
of the Act in refusing to rehire Charles Pegram and
Elaine Honeycutt. In reaching this conclusion, I rely spe-
cifically on the remark by White reflecting Respondent's
deep animosity. toward Honeycutt, and inferentially
Pegram, for their temerity -in taking Respondent to
"court" in prior unfair labor practice proceedings.
C. The Discharge of Smith
1. The material facts
Jeffrey Smith began, working for Respondent on a
summer job at. the age of 16 but quit. He was rehired in
December 1978 and :worked- until he again quit in July
1981. It is undisputed that,-his job performance and at-
tendance record during that-period of-employment was
so unimpressive that when he again sought employment
by Respondent in March,.•it was necessary for Arlene
Smith, a 20-year employee of, Respondent, to intercede in
his behalf and persuade representatives of, management,
including Sharpe, to rehire him.. Jeffrey Smith was re-
hired on March 14, but conceded herein that he was told
upon rehiring that, Respondent had reservations about it,
that he would have to abide by all the rules and regula-
tions on attendance, and that , he would be carefully
watched Smith agreed that he, would be a better em-
ployee. -
Smith began his 90-day. probationary period as a loom
cleaner but subsequently, bid into a weaver position. He
missed a day of work on, April 13 due to illness. -He was
absent on April 16 but was given permission for the ab-
sence 11 and Arlene Smith worked in her son's place on
that date.-On April 29, Smith was given a talk sheet for.
poor job performance. Smith was again ill and absent on
May 2, and was. given a talk sheet for` the absence. 12 On
May 26, he left work due to illness, and on June '14 and
15, he again missed work 'due to' illness. WhenSmith re-
ported for his next scheduled shift after June-115, he was
sent home and told to come back the next day to see
Weaving Superintendent Cook 'and Department Head J.
C. Waugh. '
Suspecting that he 'might be' discharged,; and 'upon
advice of an attorney who was representing' him in a
bankruptcy proceeding to'take a witness with him to the
meeting with Cook and Waugh to verify that his absence
was due to illness, Smith took. Elaine Honeycutt with
him to the plant•on June 16. There he-met initially with
Cook in Cook's office. Cook refused to allow Honeycutt
to attend even though at the outset of the meeting Smith
explained that he had brought Honeycutt to verify that
11 In spite of the permiss.on to be off work on April 16 , Smith's ab-
sence was not excused under the terms of Respondent 's attendance con-
trol procedures In short, the absence was counted against him -.'
12 A "talk sheet" is a written recording of a critical supervisory com-
ment to an employee regarding job performance Under Respondent's
procedures , three talk sheets given - to,an employee within their 90-day
probationary period was basis for an "automatic discharge " Attendance
policies provided for a verbal warning rather than a talk sheet for the
first absence of a probationary employee.
he had been ill during his absence on June 14 and 15. Al-
though Cook allowed Smith to bring a tape recorder
into the meeting, he declined Smith's request to use' it.
Cook began the meeting inquiring of Smith about any
problems he was having on the job, and Smith replied
that he had none, adding the one he had had previously
with the loom fixers had improved. At this point,-ac-
cording to Smith's testimony, Waugh entered 'the meet-
ing and 'the discussion turned to Smith 's absences. Smith
protested that one of those days he had been off with
permission , but White responded that he did not care and
asked Smith what he thought ought- to be done. Smith
replied that he would do better if he was given a chance.
White ended the meeting saying that he wanted to talk
the matter over with Waugh. - =
- Smith returned -to the plant lobby and waited. White
and Waugh thereafter came and got him and 'took him to
the personnel office where the three met with Sharpe.
Sharpe advised Smith that his services were no longer
needed because he had been out-too many days during
his probationary period. Sharpe offered some suggestions
to Smith regarding changes he might make before look-
ing for other employment, but Smith curtly responded
with his own suggestion that Sharpe mind his own busi-
ness . The meeting ended after an argument over whether
Smith was entitled to his paycheck on the spot and
Sharpe's threat to call the police if Smith did not leave.
Still, according to Smith, about a week after his dis-
charge he returned to the plant to clean out his locker-
and talk to White. While there he saw Waugh and asked
him if Waugh thought he had been belligerent in his dis-
cussion with Cook and Waugh. Waugh refused to com-
ment saying only that Smith was-trying to catch him in
the middle of things. Subsequently, Smith talked to
White, and explained that his absences were occasioned
by illness' and he could not understand why he had been
treated as he was, particularly since his last 2 days' ill-
ness had come beyond the completion of his 90-day cal-
endar day probationary period. White's response, was
that his hands were tied and there was nothing he could
do, but added that if Smith had come and talked to
White before talking to Cook and Waugh on the day of
the discharge, -Smith would not have lost his job. Never-
theless , White told Smith he would look into the matter
and see if anything could be 'done and would thereafter
communicate with Arlene Smith. White 's subsequent
report to.Arlene Smith has already been related.
Respondent's version of the discharge of Smith was re-
lated through Cook and Sharpe. Cook testified that
Smith was rehired for his last period, of employment only
with some reluctance in view of his earlier attendance
and attitude problems. Cook testified that after each ab-.
sence during Smith 's last employment he talked to-Smith
about the absence, and after the May 2 absence told
Smith that he was exceeding the absentee guidelines and
not living up to his 'commitment to better attendance he
made when rehired . When Smith missed June 14 and 15,
Cook discussed the matter with Sharpe and it was decid-
ed that he should be called in to talk with Cook and
Waugh : Cook concedes that there was no decision to
discharge Smith at that point and' that that decision was
UNITED MERCHANTS & MFRS.
only made after the meeting with Smith when Smith flip-
pantly told Cook there was no need of talking, that they
should go ahead and do whatever. they wanted, that
whatever Smith. had to say would make no difference,
that Smith was not going back out, and . work for Super-
visors Clint Billings, that all the supervisors wanted was
to push employees without any concern for why em-
ployees have to be absent from work. Further, Smith
added, according to Cook, that there were certain super-
visors he could not and did not plan to work for and
complained of - the treatment of specific supervisors.
Cook sent Smith back to the lobby and then proceeded
with Waugh'to see Sharpe. Cook testified that he recom-
mended to Sharpe that in view of Smith's attitude to the
effect he did not need to be corrected and also because
of his absentee record Smith should be discharged. More
particularly , with respect to Smith 's absences, Cook testi-
fied it was not the basis for the absences which con-
cerned him -but rather the number of absences. Sharpe
agreed with the recommendation and Smith was called
in and discharged.
Sharpe's testimony generally corroborated that of
Cook. Further, according to Sharpe, the reason for the
discharge "decision which he, Waugh, and Cook arrived
at was Smith's failure to live up to his commitment on
rehire and their belief that it would be putting off the in-
evitable if he was not discharged at the point of leaving
his - probationary period and before becoming a regular
employee . Moreover , Sharpe pointed out that Respond-
ent had grounds for automatically- discharging Smith
after his May 2 absence. In this regard, Sharpe pointed
out that under normal procedures , Smith should have re-
ceived a talk sheet after his April 16 absence so that after
his May 2 absence he would have had 'a total of three
talk- sheets rather than two. Smith's failure to receive a
talk sheet after the April 16 absence was simply due to "
the oversight of that attendance clerk according to
Sharpe.
2. Arguments and conclusions
The General Counsel argues regarding Jeffrey Smith
that he was discharged simply because he antagonized
and provoked Respondent by bringing a known union
adherent , Honeycutt , to assist him on June 16. This was
demonstrated , according to' the General Counsel, by
Cook's admission that no discharge decision was made
until Smith reported to the plant on June 16, and by
White's statement to Arlene Smith to the effect • that the
presence of Honeycutt constituted an implied threat to
Respondent and had it not been for that, Jeffrey would
still have had his job. Further, the General Counsel
argues that Cook, in. effect, admitted to Arlene Smith
that Jeffrey Smith had not said anything in his meeting
with Cook to demonstrate a bad attitude . Arlene , Smith's
testimony in this regard was that on June 16, after Jef-
frey's discharge , Cook explained to'her that he had in-
tended to put him back to work but that he had come in
with a "mistrustful attitude ." When she asked him what
Jeffrey Smith had said-or told him, Cook replied, "Well,
you can have a bad attitude without saying or doing any-
353
thing , it is more how you act."13 Finally, the General
Counsel contends that Respondent 's evidence does not in
fact establish that Jeffrey Smith had a "bad attitude" on
June 16 prior to the time his discharge was announced.
Based on the factors enumerated above, I find, that the
General Counsel established a prima facie violation of
Section 8(a)(3) and (1) of the Act with respect to Jeffrey
Smith 's discharge. Respondent 's evidence and argument
in rebuttal must be considered next.
Respondent 's defense is based essentially on Cook's
testimony already set forth regarding Jeffrey- Smith 's atti-
tude on June 16. Comparison of the testimony of Jeffrey
Smith and Cook shows relatively little conflict . In short,
much of what each attributed to' the other is not specifi-
cally denied on the record. Therefore, I conclude that
Jeffrey Smith did in fact display a less than totally coop-
erative attitude in the meeting with Cook and Waugh,
and, subsequently in the meeting 'with Sharpe. The criti-
cal issue to be resolved, however, is whether Smith was
initially contrite and subsequently provoked into belliger-
ency by actions or remarks by Cook reflecting the futili-
ty of attempting to placate Respondent . That he was ini-
tially provoked was clearly the case in the meeting with
Sharpe for the evidence reflects Smith 's .impudent re-
sponses were made after Sharpe announced the dis-
charge. I am also persuaded this was also the case 'in the
earlier 'meeting with Cook. In reaching this conclusion, I
note that Cook admitted that Smith asked him for an-
other chance. It would be illogical and unreasonable for
Smith to assert that he was not going back out and work
with his - supervisors and then shortly thereafter ask for a
second ' chance . It is more reasonable to believe that the
request for a second chance came first in a spirit of con-
trition.
It is beyond dispute that Smith had a poor attendance
record, but Respondent had not seen fit to discharge him
for`' either that reason or his work performance prior to
June 16. Further, Smith 's last absence occurred outside
this normal probationary employment period. Indeed,
Respondent admits that it had no intention of discharg-
ing Smith for the absences when Cook arranged to meet
with him on June 16. In' view of this; and in light of
Smith 's early request for another chance, and since Re-
spondent had no significant "attitude" problem with
Smith before June 16, Cook's recommendation that
Smith be discharged, I conclude , masks a clear ulterior
motivation.
Any doubt as to that ulterior motivation is removed
by White's remarks to Arlene Smith which unquestion-
ably established that it was Honeycutt 's accompaniment
and support of Jeffrey Smith and Respondent 's extreme
animosity to Honeycutt as a result of her union involve-
ment which prompted the discharge decision . White put
it very: succinctly in stating that if someone other than
Honeycutt had accompanied Smith he would have re-
tained his job.
" Arlene Smith 's testimony regarding Cook's comments was not spe-
cifically contradicted by Cook. Accordingly , and because I found Arlene
Smith to be a credible witness, I find Cook made the remarks attributed
to him by her.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is true, of course, that White did not participate in
the decision to discharge Smith. Under such circum-
stances, one might be inclined to dismiss his remarks on
the subject as simply an opinion, albeit coercive. See,
e.g., Garrett Flexible Products, 270 NLRB 1146 (1984).
Here, however, it must be noted that White made his re-
marks to-Arlene Smith only after he had investigated the
matter.- Further, after the investigation, he specifically at-
tributed to Respondent the basis for the decision by re-
porting to Arlene Smith "they were saying" that Jeffrey
made an implied threat when he brought Honeycutt with
him on June 16. That was the "attitude" problem that
Respondent found most distasteful, for White related no
other "attitude" problem to Arlene Smith. Cook himself
was no more specific in his subsequent conversation with
Arlene Smith regarding Jeffrey Smith's, "mistrustful atti-
tude." -
Considering the foregoing, the elements of the General
Counsel's puma-facie case, and upon evaluation of all the
record evidence, I conclude that Respondent has failed
to demonstrate that Jeffrey Smith would have been dis-
charged without regard to his accompaniment on June
16 by Honeycutt, an individual who had incurred Re-
spondent's animosity due to her earlier protected activi-
ties. Accordingly, I conclude that Smith's discharge, con-
stituted discrimination under the Ac_t in violation of Sec-
tion 8(a)(3) and (1). - -
CONCLUSIONS OF LAW
1. Respondent. Uniglass Industries, Div. United Mer-
chants & Mfrs. is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Amalgamated-Clothing and Textile Workers Union,
AFL-CIO, CLC is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent,' by ' its supervisor and agent Rayford
Clanton -on October 12, 1983, violated Section 8(a)(1) of
the Act by informing employees that, they would not
have been laid off and would have been rehired but, for
their involvement in union activities. - ,
4. Respondent, by its supervisor and agent Raymond
White on June 28, 1983, violated Section 8(a)(1) of the
Act by. informing employees that certain other employ-
ees, would not have ben discharged had they not sought
the assistance of an eniployee involved in union or other
protected 'concerted activity.. -
5. By refusing to rehire employee applicants Elaine
Honeycutt and Charles Pegram because of their prior in-
volvement in union activity and because they gave testi-
mony under the Act,' Respondent violated Section
8(a)(4), (3), and (1) of the Act.
6.' Respondent in refusing to rehire Jeanette Pegram
because of her activities on behalf of the Union violated
Section 8(a)(3) and'(1) of the Act.
7. Respondent did not violate Section 8 (a)(4) of the
Act in refusing to rehire Jeanette Pegram.
8. The aforesaid violations of the Act constitute unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act. ' ' - -
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to
cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminatorily refused
to employ applicants Elaine Honeycutt, Charles Pegram,
and Jeanette Pegram as a result of its reimplementation
of its antinepotism rule and application of that rule to the,
three, it will be recommended that Respondent be -re-
quired to offer these three individuals employment in po-
sitions for which they are qualified and in , which they
would have been employed but for the discrimination
against them. It will be further recommended that Re-
spondent be required to make them whole for any loss of
earnings or other benefits, computed on a quarterly basis
from the date that they would have been employed but
for the discrimination against them to the date of a
proper offer of employment, less any net interim earn-
ings , as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in Florida Steel Corp.,
231 NLRB 651 (1977 ).14 Because it has also been found
that Jeffrey Smith was unlawfully discharged, Respond-
ent must be required to offer him reinstatement and make
him whole for any loss of earnings and other benefits,,
computed on a -quarterly basis, from the date of dis-
charge to the date of proper offer of reinstatement, less
any interim earnings plus interest under the authorities
cited above. Consistent with the Board's decision in Ster-
ling Sugars, 261 NLRB 472 (1982). it will also be recom-
mended that Respondent be required to expunge from its
files any reference to the discharge of Jeffrey Smith or
the refusals to rehire Elaine Honeycutt and Charles and
Jeanette Pegram and notify them in writing that this has
been done and that evidence of the unlawful discharge
or refusals to iehire will not be used for future personnel
actions against them. -
On these findings of fact and conclusions of law and
on the entire record, I issue the, following recommend-
edis
14 See generally Isis Plumbing Co, 138 NLRB 716, 717-721 (1962)
15 If no exceptions are filed as provided in Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and , all objections. to them shall be deemed waived for all- pur-
poses - -
' UNITED • MERCHANTS. &- MFRS. _ 355
ORDER
The Respondent , Uniglass Industries , Div." United
Merchants & Mfrs., Statesville , North Carolina , its offi-
cers, agents, successors , and assigns, shall
1. Cease and desist from -
(a) Informing employees that they would have been
rehired but for their involvement in activities on behalf
of Amalgamated Clothing and Textile Workers Union,
AFL-CIO, CLC.
(b) Informing employees that other employees, would
not have been discharged if they had not sought the as-
sistance of employees previously involved in protected
concerted activities.
(c) Discharging, refusing to hire, or otherwise' dis-
criminating against any employees because of their activ-
ity on behalf of `the above-named Union or any other
labor organization or because they gave testimony under
the Act. -
(d) In any like or related manner interfering' with, re-
straining, or coercing employees in the exercise of the-
rights guaranteed them by Section 7 of the Act. -
2. Take the following affirmative' action necessary to
effectuate the policies of the Act. -
(a) Offer Jeffrey Smith immediate and full reinstate-
ment to his former job or, it that job no longer exists,-to
a substantially equivalent position, without prejudice to
his seniority or other rights and previleges previously en-
joyed, and make him whole for any loss of earnings and
other benefits as a result of the discrimination against
him in the manner set forth in the remedy section of this
decision.
(b) Employ Charles Pegram, . Jeanette Pegram, and
Elaine Honeycutt into those positions -for which they are
qualified and' in which they, would have been employed
but for the discrimination against them, or, if those posi-
tions no longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights or
privileges, and make them whole for any loss of earnings
or other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy sec-
tion of this decision.
(c) Remove from its files any reference to the unlawful _
discharge and notify the employee in writing that this
has been done and that the discharge will , not be used
against him in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec- ,
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its facility in Statesville, North Carolina,
copies of the attached notice marked "Appendix." i a
Copies of the notice, on forms provided by the Regional
Director for Region 11,- after being signed by the Re-
spondent's authorized. representative, shall be posted by
16 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places-. where notices to employees are customarily
posted. Reasonable steps shall, be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. -
IT IS FURTHER RECOMMENDED that the complaint be,
dismissed insofar as it alleges violations of the Act not
specifically found. ' .
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and. has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize -
To, form, join , or assist any union
To bargain collectively., through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities.
WE WILL NOT inform employees that they would have
been, rehired if they had, not -engaged in activities on,
behalf bf Amalgamated Clothing and Textile Workers
Union, AFL-CIO, CLC or any other labor organization.
WE WILL NOT inform employees that they would not
have been discharged had they-not sought the assistance
of other employees' who had been involved in activities
on behalf of the above labor organization or other pro-
tected concerted activity. • - -
WE WILL NOT discharge, refuse to employ, or other-
wise discriminate against any employees for supporting
the above-named Union or any other labor organization,
or because" employees give' testimony under the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce- you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Jeffrey Smith immediate and full rein-
statement to his former job or, 'if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or any other rights and privileges -
previously enjoyed.
WE WILL offer Charles Pegram, Jeanette Pegram, and
Elaine' Honeycutt employment into those positions for
which they are qualified and in which they would have
been hired but for the discrimination against them, with-
out prejudice to their seniority or any other rights or
privileges to which they would otherwise be entitled.
WE WILL make Jeffrey Smith, Charles Pegram, Jea-
nette Pegram , and Elaine Honeycutt whole for any loss
of earnings or other benefits resulting from the discrimi-
nation against them , less any net interim earnings, plus
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest and WE WILL notify each of them that we have and refusals to employ them will not be used for future
removed from our files any references to the discharge personnel action against them
or the refusals to employ them and that the discharge
UNIGLASS INDUSTRIES Div UNITED MER
CHANTS & MFRS